Chadrick Fulks v. T. Watson ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1900
CHADRICK FULKS,
Petitioner-Appellant,
v.
T.J. WATSON, Warden,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:15-cv-00033 — James R. Sweeney, II, Judge.
____________________
ARGUED JUNE 7, 2021 — DECIDED JULY 19, 2021
____________________
Before ROVNER, HAMILTON, and SCUDDER, Circuit Judges.
SCUDDER, Circuit Judge. Chadrick Fulks sits on federal
death row for his role in the 2002 carjacking, kidnapping, and
killing of Alice Donovan. He committed these crimes with
Brandon Basham after they escaped together from a Kentucky
jail. On two prior occasions—first, in his direct appeal and
then, in a postconviction petition under 28 U.S.C. § 2255—
Fulks challenged his capital sentence without success. Many
years later, he returned to the district court with a new request
2 No. 20-1900
for relief, this time invoking 28 U.S.C. § 2241 and the Supreme
Court’s decision in Atkins v. Virginia, and arguing that recent
changes in clinical diagnostic standards show that he is (and
since at least age 18 has been) intellectually disabled and inel-
igible for the death penalty. The district court concluded that
Fulks cannot now pursue his Atkins claim under § 2241 and
dismissed the petition. Guided in large measure by our recent
decision in Bourgeois v. Watson, we agree and affirm.
I
A
In 2004 Chadrick Fulks pleaded guilty in the District of
South Carolina to eight federal charges—including two
death-eligible offenses—arising from the carjacking, kidnap-
ping, and death of Alice Donovan. The district court then em-
paneled a jury to consider whether to impose the death pen-
alty. See 18 U.S.C. § 3593(b)(2)(A).
Fulks advanced a mitigation defense grounded in his
mental deficiencies and troubled childhood. His legal team,
the district court later observed, “painted a compelling and
empathetic picture of a young Chad Fulks growing up in
poor, crowded, filthy, and deplorable living conditions,
raised by violently abusive, sexually deviant, emotionally ne-
glectful, and alcoholic parents who did not appear to care at
all about their children’s well being.” Fulks v. United States,
875 F. Supp. 2d 535, 568 (D.S.C. 2010). His defense counsel
hired or consulted at least 11 experts, six of whom testified
and explained, among other things, that Fulks suffered from
borderline intelligence with IQ scores ranging from 75 to 79,
along with moderate brain and cognitive impairments. See id.at 555–56, 558. But Fulks stopped short of arguing that he was
No. 20-1900 3
intellectually disabled and thereby ineligible for the death
penalty under Atkins v. Virginia, 536 U.S. 304 (2002).
The jury unanimously recommended, and the district
court in turn imposed, two death sentences—one each for
Fulks’s convictions of carjacking and kidnapping that re-
sulted in Donovan’s death. The Fourth Circuit affirmed the
death sentences on direct appeal and the Supreme Court de-
clined review. See United States v. Fulks, 454 F.3d 410 (4th Cir.
2006), cert. denied, 551 U.S. 1147 (2007) (mem.).
In 2008 Fulks returned to the district court in South Caro-
lina and filed a motion to vacate his death sentences under
28 U.S.C. § 2255. He raised 33 claims, including allegations
that trial counsel rendered ineffective assistance by failing to
call additional mental health experts as part of his mitigation
defense. But once again, Fulks did not raise an intellectual dis-
ability claim under Atkins, nor did he assert that his attorneys
provided ineffective assistance by failing to raise such a claim.
The district court held an evidentiary hearing and denied
Fulks’s petition but issued a certificate of appealability. The
Fourth Circuit affirmed the denial of § 2255 relief, and the Su-
preme Court again denied a writ of certiorari. See United
States v. Fulks, 683 F.3d 512 (4th Cir. 2012), cert. denied,
571 U.S. 941 (2013) (mem.).
B
This procedural history brings us to Fulks’s most recent
request for relief. In 2015 he filed a pro se petition for a writ of
habeas corpus under 28 U.S.C. § 2241 in the Southern District
of Indiana, where he remains incarcerated at the U.S. Peniten-
tiary in Terre Haute. After the district court appointed counsel
to represent him, Fulks amended his habeas petition in 2019
4 No. 20-1900
advancing two claims. He claimed for the first time that he is
intellectually disabled under current medical diagnostic and
legal standards. He also contended that, even if he cannot
meet the precise criteria for intellectual disability, he is func-
tionally intellectually disabled and therefore ineligible for ex-
ecution under the Supreme Court’s decision and reasoning in
Madison v. Alabama, 139 S. Ct. 718 (2019). Fulks supported his
petition with a report from a neuropsychologist, Barry
Crown, who evaluated him in April 2018 and diagnosed him
as intellectually disabled under current clinical standards.
Fulks asserted that the law allowed him to raise his intel-
lectual disability claims in a § 2241 petition because § 2255
was “inadequate or ineffective to test the legality of his deten-
tion.” 28 U.S.C. § 2255(e). In Fulks’s view, because his claims
rested on new legal and factual bases unavailable to him at
the time of his sentencing and § 2255 petition, he could seek
relief under § 2241. More specifically, Fulks relied on the Su-
preme Court’s decisions in Hall v. Florida, 572 U.S. 701 (2014),
Moore v. Texas (Moore I), 137 S. Ct. 1039 (2017), and Madison,
139 S. Ct. 718 (2019)—all decided after the denial of his first
§ 2255 petition. Fulks also emphasized that his Atkins claim
roots itself in the 2012 and 2013 updates to the User’s Guide
to Intellectual Disability: Definition, Classification, and Sys-
tems of Supports, 11th Edition (AAIDD–2012), a manual from
the American Association on Intellectual and Developmental
Disabilities, and the American Psychiatric Association’s Diag-
nostic and Statistical Manual of Mental Disorders, 5th Edition
(DSM–5).
C
The district court denied Fulks’s § 2241 petition as proce-
durally barred by 28 U.S.C. § 2255(e)—a provision
No. 20-1900 5
prohibiting petitioners from seeking habeas relief under
§ 2241 unless it appears that § 2255 “is inadequate or ineffec-
tive to test the legality of [the] detention.” The district court
concluded that because Fulks failed to show a structural prob-
lem with § 2255, he could not use § 2241 to raise his Atkins
claim. Relying on our decision in Webster v. Daniels, 784 F.3d
1123, 1136 (7th Cir. 2015) (en banc), the district court ex-
plained that something more than an anticipated lack of suc-
cess with a § 2255 motion is required to satisfy the savings
clause. And as the district court emphasized, Fulks had a fair
opportunity to raise an Atkins claim in his initial § 2255 pro-
ceeding but did not do so.
Fulks now appeals.
II
A
In most cases, 28 U.S.C. § 2255 supplies the exclusive post-
conviction means for federal prisoners to challenge their sen-
tences. “Strict procedures govern” these motions. Purkey v.
United States, 964 F.3d 603, 611 (7th Cir. 2020), cert. denied,
141 S. Ct. 196 (2020). Most relevant to this appeal, the statute
limits a federal prisoner to a single attempt at filing a § 2255
motion unless the appropriate court of appeals grants permis-
sion to file a “second or successive motion.” 28 U.S.C.
§ 2255(h). But that permission can come only if the motion
contains “newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be sufficient
to establish by clear and convincing evidence that no reason-
able factfinder would have found the movant guilty of the of-
fense,” or “a new rule of constitutional law, made retroactive
6 No. 20-1900
to cases on collateral review by the Supreme Court, that was
previously unavailable.” Id. § 2255(h)(1)–(2).
Fulks concedes that his Atkins claim does not satisfy either
of these exceptions. This acknowledgement explains why he
filed his petition under 28 U.S.C. § 2241 and invoked the so-
called savings clause in § 2255(e)—a narrow pathway of last
resort for prisoners to seek postconviction relief through the
general federal habeas corpus statute codified in § 2241.
The savings clause provides:
An application for a writ of habeas corpus in be-
half of a prisoner who is authorized to apply for
relief by motion pursuant to this section, shall
not be entertained if it appears that the appli-
cant has failed to apply for relief, by motion, to
the court which sentenced him, or that such
court has denied him relief, unless it also ap-
pears that the remedy by motion is inadequate or
ineffective to test the legality of his detention.
28 U.S.C. § 2255(e) (emphasis added). The crucial point, clear
from the text of the savings clause, is that Congress hinged
access to § 2241 upon a showing that § 2255 is “inadequate”
or “ineffective.”
To date, we have identified three situations in which the
remedy provided by § 2255 proved inadequate or ineffective.
See In re Davenport, 147 F.3d 605 (7th Cir. 1998) (involving a
claim alleging a miscarriage of justice and based upon a new
rule of statutory interpretation made retroactive by the Su-
preme Court); Garza v. Lappin, 253 F.3d 918 (7th Cir. 2001) (in-
volving a claim based on the ruling of an international tribu-
nal issued after the prisoner’s first round of § 2255 relief);
No. 20-1900 7
Webster, 784 F.3d 1123 (involving a claim that relied on new
evidence that existed but was allegedly unavailable at trial de-
spite counsel’s diligent efforts, and where that new evidence
could show that the petitioner had long been intellectually
disabled); see also Purkey, 964 F.3d at 611–14 (providing a ful-
some explanation of these central cases).
We explained in Purkey and reiterate today that our deci-
sions in Davenport, Garza, and Webster do not “create rigid cat-
egories delineating when the [savings clause] is available.”
964 F.3d at 614. But we also underscored that “the words ‘in-
adequate’ or ‘ineffective,’ taken in context, must mean some-
thing more than unsuccessful.” Id. at 615. Rather, “there must
be a compelling showing that, as a practical matter, it would
be impossible to use section 2255 to cure a fundamental prob-
lem.” Id. (emphasis added). In short, a petitioner must iden-
tify “some kind of structural problem with section 2255 before
section 2241 becomes available.” Webster, 784 F.3d at 1136.
B
Fulks posits that he can channel his Atkins claim through
the savings clause because the recent adjustments to today’s
legal and clinical diagnostic standards came after his sentenc-
ing and § 2255 petition, meaning he could not have pursued
or prevailed on his intellectual disability claim until now.
Evaluating this contention requires consideration of how the
law and clinical standards have evolved over the last 20 years.
We begin with Atkins, where the Supreme Court held that
the Eighth Amendment prohibits the execution of intellectu-
ally disabled persons. See 536 U.S. at 321. The Court’s analysis
drew upon clinical definitions of intellectual disability, which
“require[d] not only subaverage intellectual functioning, but
8 No. 20-1900
also significant limitations in adaptive skills such as commu-
nication, self-care, and self-direction that became manifest be-
fore age 18.” Id. at 318.
The Supreme Court refined the Atkins analysis 12 years
later in Hall, striking down a Florida law that prohibited a
finding of intellectual disability if a person’s IQ score ex-
ceeded 70. See 572 U.S. 701. The Court concluded that such a
rigid cutoff created an unacceptable risk that an intellectually
disabled person would be executed. See id. at 704. Along the
way the Court reaffirmed Atkins’s teaching that courts are to
be “informed by the work of medical experts in determining
intellectual disability.” Id. at 710.
Taking into account the newly available DSM–5 and build-
ing on Atkins, the Hall Court reiterated that “the medical com-
munity defines intellectual disability according to three crite-
ria: significantly subaverage intellectual functioning, deficits
in adaptive functioning (the inability to learn basic skills and
adjust behavior to changing circumstances), and onset of
these deficits during the developmental period.” Id. at 710. Be-
cause IQ tests entail certain imprecision, the Court further in-
structed that “when a defendant’s IQ test score falls within
the test’s acknowledged and inherent margin of error, the de-
fendant must be able to present additional evidence of intel-
lectual disability, including testimony regarding adaptive
deficits.” Id. at 723.
The Supreme Court returned to the Atkins standard three
years later in Moore I, holding that the Texas Court of Criminal
Appeals erred by disregarding the medical community’s cur-
rent definition of intellectual disability. See 137 S. Ct. 1039.
The proper Atkins inquiry, the Court clarified, must follow the
medical community’s current diagnostic standards, not
No. 20-1900 9
outdated frameworks, judicially crafted factors, or layman’s
stereotypes. See id. at 1051–53. Because the margin of error for
Bobby Moore’s IQ score of 74 yielded a range of 69 to 79—
therefore allowing the possibility of a true IQ below 70—the
Texas court, in evaluating whether Moore was intellectually
disabled, “had to move on to consider Moore’s adaptive func-
tioning.” Id. at 1049.
Moore’s case returned to the Supreme Court in 2019 after
the Texas court, on remand, once again rejected his claim of
intellectual disability. See Moore v. Texas (Moore II), 139 S. Ct.
666 (2019) (per curiam). The Supreme Court again reversed,
concluding the Texas court repeated many of the same errors
decried in Moore I and ultimately finding that Moore was in-
deed intellectually disabled. See id. at 670–72.
The Supreme Court’s decisions in Hall, Moore I, and Moore
II recognized that the medical diagnostic standards have not
stood still since Atkins. And as the Court underscored in Moore
I, intellectual disability determinations “must be ‘informed by
the medical community’s diagnostic framework.’” 137 S. Ct.
at 1048 (quoting Hall, 572 U.S. at 721). Updated editions of the
leading diagnostic manuals—the AAIDD–2012 and the DSM–
5, issued in 2012 and 2013 respectively—superseded earlier
versions governing at the time of Fulks’s sentencing and ini-
tial § 2255 motion. Fulks’s newly asserted claim that he is in-
tellectually disabled anchors itself in the modifications to the
diagnostic standards.
Compared to the prior edition, the DSM–5 places en-
hanced emphasis on the need to assess both cognitive capac-
ity and adaptive functioning. The AAIDD–2012 and DSM–5
also now include express recommendations for certain con-
siderations when measuring intellectual disability: evaluators
10 No. 20-1900
should base diagnoses on both a clinical assessment and
standardized testing, should not rely on stereotypes about in-
tellectually disabled people, and may adjust IQ scores for the
so-called Flynn effect. See McManus v. Neal, 779 F.3d 634, 652–
53, 653 n.6 (7th Cir. 2015) (citing James R. Flynn, The Mean IQ
of Americans: Massive Gains 1932 to 1978, 95 PSYCH. BULL. 29,
32–34 (1984)) (explaining the Flynn effect as a testing phenom-
enon where IQ scores increase on average 0.3 points per year
from the time the test was standardized, but reasoning that
the Atkins standard does not require adjusting IQ scores for
this effect).
III
A
All of this background brings us to Fulks’s § 2241 petition.
He opted for this procedural route to raise an Atkins claim be-
cause he did not meet the narrow requirements for filing a
second or successive § 2255 petition. See 28 U.S.C. § 2255(h).
But Fulks cannot satisfy the saving clause’s requirements ei-
ther, and this deficiency stops his § 2241 petition in its tracks.
We reached the same conclusion on similar facts less than a
year ago in the capital case of Alfred Bourgeois. See Bourgeois
v. Watson, 977 F.3d 620 (7th Cir. 2020). We chart the same
course today.
To begin, “Atkins was the watershed case on intellectual
disability” decided by the Supreme Court in 2004—years be-
fore Fulks filed his § 2255 motion in 2008. Id. at 636. Fulks
could have raised substantially the same argument he brings
now—that he is intellectually disabled—in his initial § 2255
petition. But he did not do so, ostensibly because he believed
No. 20-1900 11
he would not have prevailed under the legal landscape and
clinical diagnostic standards in effect at that time.
The probability that Fulks would not have prevailed on his
Atkins claim in 2008 does not mean or show that § 2255 was
inadequate or ineffective. We made this exact point in Purkey,
reinforcing that “the words ‘inadequate or ineffective’ taken
in context, must mean something more than unsuccessful.”
964 F.3d at 615. Indeed, we have insisted, time and again, that
satisfying the savings clause in § 2255(e) demands “a compel-
ling showing that, as a practical matter, it would be impossi-
ble to use section 2255 to cure a fundamental problem.” Id.;
see, e.g., Higgs v. Watson, 984 F.3d 1235 (7th Cir. 2021) (apply-
ing the savings clause analysis to a capital defendant’s habeas
petition and concluding he could not satisfy § 2255(e)’s de-
manding requirements); Bourgeois, 977 F.3d 620 (same); Lee v.
Watson, 964 F.3d 663 (7th Cir. 2020) (same). Right to it, “[i]t is
not enough that proper use of the statute results in denial of
relief.” Purkey, 964 F.3d at 615.
Updates to the legal and diagnostic standards, which may
now provide Fulks a stronger basis to prove an intellectual
disability, do not expose any structural defect in § 2255. On
the legal front, Hall, Moore I, and Moore II did not alter the law
of intellectual disability to such a great extent that the remedy
by a § 2255 motion was inadequate or ineffective to test the
legality of Fulks’s death sentence at the time he filed his peti-
tion in 2008. Although the Supreme Court in Atkins did not
prescribe a specific test for determining when a person is in-
tellectually disabled, it did rely on clinical definitions requir-
ing both subaverage intellectual functioning and significant
limitations in adaptive skills that manifest before age 18—the
same three requirements governing the standard today. See
12 No. 20-1900
Atkins, 536 U.S. at 318. The trilogy of cases that followed—
Hall, Moore I, and Moore II—each represent course corrections
to state-court applications of Atkins that “further elaborated
on the measurements of intellectual function and the evalua-
tion of adaptive deficits.” Bourgeois, 977 F.3d at 636. With or
without that trio, Fulks could have raised the same Atkins
claim in his initial § 2255 motion.
Nothing in the Supreme Court’s jurisprudence prohibit-
ing the execution of intellectually disabled persons, moreo-
ver, suggests that a capital prisoner seeking to raise an Atkins
claim is exempt from the procedural limitations in § 2255. Nor
do Hall, Moore I, or Moore II create “new rule[s] of constitu-
tional law, made retroactive to cases on collateral review by
the Supreme Court,” that would permit a second or succes-
sive motion under § 2255(h)(2). The observation that Hall,
Moore I, and Moore II refined the application of Atkins is not
enough to satisfy the savings clause in the circumstances be-
fore us here.
So, too, on the clinical front. Updates to the clinical diag-
nostic standards for intellectual disability likewise do not con-
vince us that the remedy available to Fulks in his original
§ 2255 motion was inadequate or ineffective. To be sure, Fulks
may have a marginally stronger case of proving intellectual
disability under today’s standards. Under the DSM–5, for ex-
ample, Fulks’s Flynn-adjusted IQ scores of 75, 76, and 77
could satisfy the first prong of showing intellectual disabil-
ity—subaverage intellectual functioning—because scores up
to 75 fall within the range for an intellectual disability. And
whereas no expert diagnosed Fulks as intellectually disabled
at sentencing or in his initial § 2255 motion, neuropsycholo-
gist Barry Crown concluded in 2018 that Fulks is intellectually
No. 20-1900 13
disabled under these updated standards—although he
stopped short of saying that Fulks was not intellectually disa-
bled under the older standards.
Regardless, these recent updates to the AAIDD–2012 and
DSM–5 fail to reveal anything inadequate or ineffective about
§ 2255 that made it impossible for Fulks to pursue an Atkins
claim in his initial postconviction motion. See Bourgeois,
977 F.3d at 636 (rejecting this same argument and explaining
“the savings clause does not apply every time … the medical
community updates its diagnostic standards”). Fulks sought
at sentencing to avoid the death penalty by relying on his cog-
nitive impairments and fetal alcohol spectrum disorder—ow-
ing in no small part to his horrific upbringing—and he had
every opportunity to take the next step and argue, whether
measured more functionally or under a strict application of
clinical standards (or both), that he was intellectually disa-
bled.
Fulks begs to differ, insisting that any Atkins claim would
have been futile when he filed his § 2255 petition in 2008, be-
cause the Fourth Circuit at that time employed standards for
assessing intellectual disability that were later rejected in Hall,
Moore I, and Moore II.
We disagree. Fulks’s Atkins claim was not so squarely fore-
closed by Fourth Circuit precedent that it would have been
impossible or altogether futile for him to raise this claim dur-
ing his first round of postconviction relief. To the contrary, the
Fourth Circuit cases that Fulks identifies reflect specific appli-
cations of differing state-law intellectual disability standards
to various capital defendants through the deferential lens of
federal habeas review. See, e.g., Richardson v. Branker, 668 F.3d
128 (4th Cir. 2012) (applying North Carolina’s standard for
14 No. 20-1900
intellectual disability to a § 2254 motion and concluding the
state court’s decision was not based on an unreasonable de-
termination of the facts); Walker v. Kelly, 593 F.3d 319 (4th Cir.
2010) (applying Virginia’s definition for intellectual disability
to a § 2254 petition and holding the district court did not
clearly err in finding the petitioner was not intellectually dis-
abled); Green v. Johnson, 515 F.3d 290 (4th Cir. 2008) (applying
Virginia law and concluding the Virginia Supreme Court did
not apply Atkins in an objectively unreasonable manner).
By our reading, though, not one of these cases suggests
that the legal and diagnostic standards recognized in Atkins
were etched in stone or would render frivolous any argu-
ments for adapting the legal framework to include updated
clinical standards about intellectual disability. To the con-
trary, in a 2004 case, the Fourth Circuit did not question the
district court’s reliance on a clinical standard established by
the American Association on Retardation that an IQ of 75 or
below placed an individual in the intellectually disabled cat-
egory—thereby showing amenability to an argument that
Fulks, with an IQ score of 75, is likewise intellectually disa-
bled. See United States v. Roane, 378 F.3d 382 (4th Cir. 2004)
(affirming the district court’s rejection of an Atkins claim in a
§ 2255 motion).
Our point with all of this is to say that we are aware of no
Supreme Court or Fourth Circuit case on the books at the time
of Fulks’s § 2255 petition that would have foreclosed him
from raising an arguable Atkins claim. In the end, then, we are
unable to identify any structural defect in § 2255 that ren-
dered it an inadequate or ineffective device to challenge his
capital sentence. The consequence is that Fulks cannot use
No. 20-1900 15
§ 2241 to claim for the first time that he is ineligible for the
death penalty under Atkins.
B
Fulks invokes a second ground for habeas relief by relying
on the Supreme Court’s 2019 decision in Madison v. Alabama.
See 139 S. Ct. 718. But Madison has no import to Fulks’s intel-
lectual disability claim.
Madison falls in the line of cases stemming from Ford v.
Wainwright, 477 U.S. 399 (1986), and Panetti v. Quarterman,
551 U.S. 930 (2007), in which the Court held that the Eighth
Amendment prohibits executing an insane prisoner—mean-
ing one who lacks a “rational understanding” of the reason
for his execution. See Panetti, 551 U.S. at 958–60; Ford, 477 U.S.
at 409–10. This prohibition on carrying out a death sentence is
distinct from the holding in Atkins, which bars the imposition
of a capital sentence in the first place. Compare Ford, 477 U.S.
at 410, with Atkins, 536 U.S. at 321. Part of this distinction
arises from the fact that a prisoner may become insane after
being sentenced to death, whereas intellectual disability must
manifest before age 18, such that the capital sentence cannot
ever be imposed consistent with the Eighth Amendment. See
Davis v. Kelley, 854 F.3d 967, 971 (8th Cir. 2017).
Although defendants in Ford and Panetti suffered from
paranoid schizophrenia and extreme psychosis, the Court
took the next step in Madison by clarifying that a delusional
disorder is not a prerequisite to relief from execution. See
Madison, 139 S. Ct. at 728. The Court instead emphasized that
it is “not the diagnosis of [a particular mental] illness, but a
consequence—to wit, the prisoner’s inability to rationally un-
derstand his punishment” that governs the inquiry. Id.16 No. 20-1900
Fulks sees Madison as a newly recognized functional ap-
plication of the Eighth Amendment that should apply equally
to his Atkins claim. Put another way, he believes Madison al-
lows him to contend that his limitations are functionally
equivalent to those of an intellectually disabled person, mak-
ing him ineligible for the death penalty even if he does not
meet the technical diagnostic criteria for an intellectual disa-
bility. Going further, Fulks adds that Madison provides him a
new ground for relief that was previously unavailable when
he filed his initial § 2255 petition, thereby entitling him to pur-
sue his claim under § 2241.
Not so in our view. In all practical respects, Fulks’s Madi-
son claim is the same as his Atkins claim: the crux of his con-
tention remains that he is intellectually disabled and thus in-
eligible for a capital sentence. No aspect of Madison changes
the reality that he could have raised this Atkins claim during
his first round of postconviction relief under § 2255.
Our conclusion finds reinforcement in Fulks’s own insist-
ence that his Madison-based claim is an Atkins claim, not a Ford
claim. And for good reason, as Ford claims ripen only once a
prisoner’s execution is imminent, and so far, the Executive
Branch has not scheduled Fulks’s execution. See Holmes v.
Neal, 816 F.3d 949, 954 (7th Cir. 2016); see also Stewart v. Mar-
tinez-Villareal, 523 U.S. 637, 644–45 (1998).
IV
Today’s decision is surely not our last word on the savings
clause. If our prior cases show anything, it is the immense
complexity in identifying the contours of the savings clause
and its proper scope, including in capital litigation. See, e.g.,
Higgs, 984 F.3d 1235 (analyzing the savings clause in a capital
No. 20-1900 17
case); Bourgeois, 977 F.3d 620 (same); Lee, 964 F.3d 663 (same);
Purkey, 964 F.3d 603 (same); Webster, 784 F.3d 1123 (same).
Although Fulks has not prevailed today and cannot access
§ 2241 through the savings clause, he has identified—through
the assistance of very able counsel—a potential structural lim-
itation that may require additional assessment in a future
case. The difficult question on the horizon is whether a capital
prisoner can access § 2241 to vacate a death sentence in the
face of a monumental change to the clinical definition of intel-
lectual disability that occurs after the prisoner completed one
round of § 2255 proceedings. Assuming a substantial change
in the clinical standards allows a newfound diagnosis of in-
tellectual disability, his execution would offend the Eighth
Amendment. But the prisoner would have no way to raise his
Atkins claim as a second or successive motion under
§ 2255(h)’s two express exceptions.
Identifying this issue is much easier than resolving it. And
Fulks’s appeal does not require us to take that second step. It
is enough for us to observe that there is a serious question
whether § 2255 is inadequate or ineffective when a sea change
in clinical standards would allow a prisoner to make a sub-
stantial showing of intellectual disability that, despite all dili-
gence, he could not have raised previously. Nor must we de-
cide today how much evidence a prisoner would need to pre-
sent to receive an evidentiary hearing and relief under § 2241
for such an Atkins claim. Cf. Herrera v. Collins, 506 U.S. 390,
417 (1993) (assuming in another context “that in a capital case
a truly persuasive demonstration of ‘actual innocence’ made af-
ter trial would render the execution of a defendant unconsti-
tutional, and warrant federal habeas relief if there were no
18 No. 20-1900
state avenue open to process such a claim” (emphasis
added)).
Fulks and his counsel had the necessary facts and every
opportunity to present an Atkins claim—but did not pursue it
during sentencing, on direct appeal, or in his § 2255 petition.
And the subsequent changes in the DSM–5 and the AAIDD–
2012 do not amount to the kind of substantial change neces-
sary to present a close question of whether the savings clause
could potentially apply. So we can save for another day diffi-
cult questions that lurk in our savings clause jurisprudence.
For all of these reasons, we AFFIRM.